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Digital ISP liability in Thailand

There are several areas where control over netizens is exercised in Thailand. The first is insulting the monarchy, lèse majesté. In 2012 an Internet user was convicted of this when she failed to delete from a forum she administered, allegedly insulting comments. The other is the equally vague issue of free speech. There have been several instances of content removal for this reason. It is said that a lack of Safe Harbour protections for ISPs leave them with uncertain liability and therefore they prefer to take down content without much inquiry. Especially as the 2014 coup and martial law has made them more conservative.

2 Digital Economy laws recently passed by the Thai military government make changes. An amendment to the 2007 Computer Crime Act, which makes ISPs liable for offenses such as lèse majesté by their users now provides that ISPs avoid liability only if they can prove that they have complied with the warning and removed the content. In essence it makes removal necessary, to avoid risk.

Another amendment is meant is for copyright. ISPs are not liable if they do not control, initiate or order the infringement. Only a court order can override this. So for copyright the ISP protection is wider than for the free speech areas. ISPs exercising no control, the so called 'public utility' approach escape liability. Only when they start to take on editorial responsibility will liability arise.

For now trademarks attract no such specific protection. Secondary liability is not specifically set out, but in practice ISPs do comply with IP holder requests.

IP Holders and ISPs will like the clarity the amendments bring. But beyond this, it will also helps tackle the problem of online infringement by setting clear borders. Because of the influence of Thailand's control of content deemed inappropriate for royal or free speech reasons, ISPs may still find it easier to take content down than risk liability. Free speech advocates may complain, but Thailand is a country with widespread IP problems that may justify such an approach.